Record No: 141159
(As published by the Virginia Supreme Court)
In a widow’s “Complaint to Establish Copies of the Will and Trust Where Originals Cannot Be Located,” the trial court did not err when it ordered a photocopy of a will to be probated. The proponent of a missing will is not required to specifically prove what became of the missing will, but is required to prove, by clear and convincing evidence, that the testator did not destroy the will with the intention of revoking it. Here, it is clear from the transcript and the final order that the trial court applied the proper legal standard recognizing that, because the will was traced to decedent’s possession but was not located at his death, the presumption of revocation applied, but that the presumption could be overcome by clear and convincing evidence that the will was not revoked by the defendant. The factual record here showed that decedent was unequivocal in all of his statements concerning his intent that his wife and daughter be the objects of his bounty, and that he specifically did not intend to leave anything to his son by a former marriage. There was also no evidence in the record of anything that might have changed the testator’s mind. Viewed in the light most favorable to the plaintiff widow, the evidence was sufficient to support the trial court’s finding that she had rebutted the presumption of revocation by clear and convincing evidence, and that the original will was not missing because the testator had purposefully destroyed it with the intention of revoking it. The judgment of the trial court admitting the photocopy of the 2002 will to probate is affirmed.
